January 20, 2006

Orin Kerr makes a point in this post that I've found myself saying a few times lately, that blogging can be good for legal scholarship. He's responding to Daniel Solove, who's complaining about how badly written law review articles are. They're too long and complicated, especially in proportion to the ideas they express.

I wrote a little article on this subject back in 1994 called "Who's to Blame for Law Reviews?" 70 Chi.-Kent. L. Rev. 81. I was disagreeing with people who blame the student editors, who, I said were mainly following the lead of lawprofs:

[L]aw review editors have a sense of what a Law Review Article is supposed to look like: a proper ratio of text to footnotes, a reassuring stolidity to the prose, a predictable structure studded with signposts that advertise the existence of that predictable structure, transition paragraphs before every paragraph that contains the approximation of a new idea, transition sentences before every sentence that ventures into the semblance of new territory, transition phrases parasiting on every sentence that might otherwise contain no reminder of what we have been discussing all along, confidence-inspiring, tiny elevated numbers appearing with the frequency of punctuation marks.

If you give these students your attempt at imitating the law review articles that have gone before, they will quite naturally undertake to help you succeed at what it appears you are trying to do - to produce a textual object that really looks like that article stereotype they have in their minds. Chances are they do not have a terrible lot of respect for the form either and they, too, ridicule its pomposity, its leaden seriousness, its circumspect proposals, and its compulsive footnoting. Yet, just as the author sought a job, tenure, a raise, or (for the more lofty-minded) reputation, the students have extrinsic goals in mind. It is their own future, and not the general advancement of legal literature, that tends to motivate law students to add the work of editing a law journal to their already heavy workload. If the law professor has not challenged the limitations of the genre, why would they?

When you see your article after their editing, you are going to be appalled at what they've done. It's going to come back insipidly neutral in tone, deadened into law reviewese. You hate it. Why did they do this to my prose?

Perhaps they have done it because your work seemed to be moving in that direction in the first place. You were writing what was in essence a parody, and they reacted by shifting into an even higher gear parody. It is a joint venture: what we do suggests to them that they ought to do what they do - even though when we see it we find it appalling. We are like the parents who are aghast when their children lash out at them with anger, sarcasm, or words meant to humiliate. Those parents resist perceiving that it is their own manner of speaking that the children have adopted. The children return their interpretation of the language and intonation they have heard. The parents are aghast because they are now on the receiving end. The children are showing them how it looks from the other side. The parent is not the victim but the teacher. Likewise, we, the law review writers, can fancy ourselves the victims of the students, but we are, most assuredly, the teachers.

Our displeasure with student editing should translate into critique of our own writing. The solution is not to complain about students, but to stop writing these parodies.

I really believed, back then, that the short essay form could take over. But in fact, law reviews got longer and longer and more and more unreadable. I'd have been sad if I had known that then, but I'd have been elated if I'd known that blogging would come into being.

Orin Kerr responds to Solove with:

Maybe the answer is more lawprof bloggers. Blogging pushes you to write clearly and simply; the format rewards clarity of expression more than traditional law review articles do.

That is so right. Blogging sharpens our taste in writing. It makes us impatient with circumlocution and pretentiousness. It makes us expect to see pithy ideas in every sentence.

And let's not resort to blaming law students. I don't think you need to escape into blogging because law reviews hold you back. As I said in 1994, the students learn from us. As we blog and demonstrate the value of concision and clearly expressed ideas, they are learning that it is legitimate to demand these writing values from the lawprofs whose work they publish. They are tipped off that it's okay to be fed up with windy professorial meanderings. Students can revise and restore their journals -- as I've got to think they want to do -- by infusing them with the good writing values blogging demonstrates.

Another value of blogging, for lawprofs and writers and "idea transmitters" of all kinds, is that you get instant, and continuous, feedback. One of the problems with law review articles (and I've written a few) is that the writer can enter a black hole of over-attachment to his/her thesis and ideas, and that this can continue for the gestation of the article. Sometimes, peer review and law review editors come too late to save the article. With blogging, you're exposing your ideas to the sunlight of reality from the beginning, which can be traumatic for the writer, but can lead to a quality product.

Your concerns also might apply to the writing of master's theses and dissertations. Students begin with imaginative ideas and prose and, after committee review, sometimes end up with dry clods of earth.

It's not just law review articles. Have you encountered a member of the extremely wordy troll tribe? The person who uses absurdly complex phrasing and wordiness to the point that any point he actually had is completely lost?

The saying "if you can't dazzle them with brilliance, baffle them with bull____" applies in life!

I am intrigued and pleased, Ann, to see your embrace now of "blogging as an alternative to law reviews." It seems as though your views have evolved somewhat since last August when I surmised a bit of scoffing at my exploration (over at PrawfsBlawg) of how we might improve blogs as an academic medium.

Ann: I can't find your comment over at my blog, so I am not sure how to respond.

I will explain that I read (perhaps mis-read) your August post about blogging as "life" and "art" as a rejection of my exploration of pushing the blogging medium to be more effective and accepted as a form of scholarship.

I am sorry if "scoff" was the wrong interpretation of your August post. But this latest post begins by explaining thay you've found yourself "saying a few times lately that blogging can be good for legal scholarship." It was this opening statement that led to my conclusion that your views on this topic may be evolving.

Please point me to you other comments, because I am very interested in these issues, and I actually think we share a lot of views about how blogs can change the world (even if we, apparently, do not understand each other).

Douglas: Hmmm.... I guess my comment didn't take over there. I'm not sure exactly what I wrote. My point is that my ideas here haven't "evolved." You're perceiving a change because you think there's an inconsistency that in fact is not there. Anyway, my current post is about how the writing style of blogging can improve the writing in law reviews, which tends to be rather bad. I continue to prefer wide-ranging blogging and to have a negative reaction to people who want to make blogging more serious-looking. I'm not backing down from what I said in August:

Stephen Bainbridge is saying that blogging -- for lawprofs anyway -- is just for fun. He's reacting to Douglas Berman who's asking the dauntingly somber question: "How might we improve blogs as an academic medium?" Well, jeez, Doug, if you're going to phrase it like that, you're going to propel me all the way over to hedonistic side, where I don't even want to be.

Berman's regular blog is "Sentencing Law and Policy," so you can see where he's coming from. He's in that part of the law blogosphere where each blog is dedicated to a particular area of legal scholarship. He asks how we can transform blogging into "a more respected and trusted academic medium." He doesn't say, but I suspect his answer is that lawprofs need to dedicate their blogs to their specific areas of professional expertise -- like Sentencing Law and Policy. No more politics and photographs and idle thoughts about music and TV.

No wonder Bainbridge responds with "Yuck." He calls blogging a "hobby," a nice break from professional obligations.

If I had to pick, I'd go with Bainbridge, but in fact, I reject both the work and play models. Blogging means much more to me than either concept expresses. Blogging is life -- in writing, in public. It's not a job or a break from a job. It's everything you might think about. Blogging is art.

I think the single-topic approach to blogging is okay for those who want to do it, but I rankle at the suggestion that bloggers who take the wide-ranging approach will need to get serious and scholarly. That was a big drag back in August, and it's a big drag now. I do not want you to think that this new post shows me coming any closer to agreeing with you about disciplining blogging into "a more effective and accepted as a form of scholarship." This post is about pushing law reviews toward better writing.

Ann: This clarification helps me understand your views, although I fear you do not fully appreciate my goals.

I do not think blogging has to be --- or should be --- an either/or medium. Though I would like blogs to be a more effective and accepted academic medium, I absolutely do not want you to feel any pressure "to get serious and scholarly" in your own blogging. The joy and genius of this medium is that we can each define and construct our goals for it.

I do not think I have previously suggested I want to "discipline" blogging. Rather, my desire is to enable blogging to be able to be more things to more people.

My animating concern is that, at least right now, those who want to use blogs, in your words, as "an alternative to law reviews" must still confront an anti-blog bias in large parts of the legal academy. I think that's a big shame, and risks limiting to prospect for this amazing technology to change the legal scholarship universe as much as that universe needs changing.

P.S. I really enjoyed your book review in the NYT today (even though parts of it were somewhat serious and scholarly).

Douglas: I appreciate that point, but I think you're being unnecessarily stodgy. Blogging has an energy to it. I'd rather help people get it than tone it down on the theory that are colleagues are a bunch of stuffed shirts.

And Douglas, "Blogging as an alternative to law reviews" is in quotes. It's from Orin Kerr. My post is entirely about the "and as a model for them" part of the quote. I really don't want to see blogging made more like law reviews. I want to see law reviews made more like blogging.